recognizing numerous cases holding that an officer’s use of a taser against a plaintiff who is “actively resisting arrest by physically struggling with, threatening, or disobeying officers” is not a violation of the plaintiff’s clearly established Fourth Amendment rights, even if the plaintiff is suspected of committing only a misdemeanor
How later courts described this case
- recognizing numerous cases holding that an officer’s use of a taser against a plaintiff who is “actively resisting arrest by physically struggling with, threatening, or disobeying officers” is not a violation of the plaintiff’s clearly established Fourth Amendment rights, even if the plaintiff is suspected of committing only a misdemeanor
- stating that the plaintiff “must show that the official violated a right so clearly established” and that “[t]he plaintiff bears the ultimate burden of proof to show that the individual officers are not entitled to qualified immunity.”
- explaining that an “excessive-force claim is available” when “a law-enforcement official tases a plaintiff who has done nothing to resist arrest or is already detained”
- collecting cases and concluding that as of 2009 courts had granted qualified immunity whenever "plaintiffs [were] tased while actively resisting arrest by physically struggling with, threatening, or disobeying officers”
Written by the judges who cited it.
The opinion
COLE, Circuit Judge,
concurring.
I am persuaded that Cockrell, as of July 3, 2008, did not have a clearly established right not to be tased for fleeing from a non-violent misdemeanor. I write separately because, given the totality of the circumstances, I believe that Officer Hall’s use of force was excessive.
In several of the cases cited by the majority, in which courts found that the use of a taser against a resisting arrestee constituted excessive force, the courts placed great weight on the officer’s failure to warn the suspect prior to deploying the taser. See Mattos v. Agarano, 661 F.3d 433 , 451 (9th Cir.2011) (en banc) (finding excessive force and reasoning that the officer’s failure to warn the plaintiff before deploying her taser “pushes this use of force far beyond the pale,” but that jurisprudence restricting taser usage was not clearly established in August 2006); Bryan v. MacPherson, 630 F.3d 805 , 831, 833 (9th Cir.2010) (finding excessive force and noting that the officer’s failure to warn the plaintiff before tasing her “militate[s] *499 against finding [the defendant’s] use of force reasonable,” but that relevant taser jurisprudence was not clearly established in July 2005); Casey v. City of Federal Heights, 509 F.3d 1278, 1285 (10th Cir.2007) (finding excessive force and a violation of clearly established law, reasoning that “[t]he absence of any warning” before the officer deployed her taser ... “makes the circumstances of this case especially troubling”). Likewise, the City of Cincinnati’s use-of-force policy advises officers to “give the subject a verbal warning that the TASER will be deployed unless exigent circumstances exist that would make it imprudent to do so.” R.8^1 at 9.
Here, Hall does not allege that he warned Cockrell of the impending use of his taser — or even that he ordered him to stop — nor does he allege that exigent circumstances prevented him from doing so. Thus, I would find that his use of a taser under these circumstances violated Cock-rell’s Fourth Amendment right to be free from excessive force.